Supreme Court Preview: A Momentous Term

Conservatives are seeking big wins in the Supreme Court, even as they wage war on the rule of law in order to capture the lower courts.

Associate Supreme Court Justice Neil Gorsuch and Chief Justice John Roberts walk down the steps of the Supreme Court in Washington, June 2017. (AP/ J. Scott Applewhite)
Associate Supreme Court Justice Neil Gorsuch and Chief Justice John Roberts walk down the steps of the Supreme Court in Washington, June 2017. (AP/ J. Scott Applewhite)

As rumors of major changes circulate around the Supreme Court, the stakes have never been higher. The court has only set approximately half of its cases for the term, and the schedule already includes five blockbusters. These cases span issues from political representation and discrimination to the right to trial and the ability to form strong unions; several stand to affect the fundamental rights of millions of Americans.

The nine Supreme Court justices could, for example, limit the practice of gerrymandering, which increases polarization, distorts our politics, and deprives people across the country of meaningful democratic participation. In fact, Justice Ruth Bader Ginsburg has suggested that this case may be the term’s most important. At a critical juncture for LGBT rights, the justices could also state clearly, for the first time, that discrimination on the basis of sexual orientation and gender identity is just as unconstitutional as discrimination based on one’s sex

Or the court could do none of these things. The justices could, instead, entrench gerrymandering and license people across the country to discriminate on the basis of their religious beliefs. They could also strip employees of a right to hold employers accountable.

Next Monday’s line-up includes a set of consolidated class-action waiver cases heard under the banner of Ernst & Young LLP v. Morris. These under-the-radar cases could have far-reaching effects by making it easier for employers to force employees to take claims based on wage violations, wrongful termination, and on-the-job injuries to arbitration individually rather than to court as a group, even when the employees suffer the same harms. In arbitration, corporations get the upper hand—in a substantial, arguably unconstitutional, way. Arbitration doesn’t take place in courts—instead, it occurs out of sight, in back rooms, decided by a private arbiter according to the company’s terms and limits. Decisions are kept secret from other potential claimants and are totally final, immune to appeal.

Tuesday brings Gill v. Whitford, the blockbuster partisan gerrymandering case out of Wisconsin. It’s hard to disagree with Ginsburg on its importance. The immediate question is some version of whether the Wisconsin legislature violated the U.S. Constitution when it gerrymandered the state’s congressional districts to deprive Democratic voters of representation. The potentially transformative question? Whether the challengers, represented by the Campaign Legal Center, have come up with a neutral test for measuring partisan gerrymandering that the court will accept—and require be applied. This has been an open question since 2004’s Vieth v. Jubelirer.

Come November, the court will take on a second major voting rights case: Husted v. A. Philip Randolph Institute. Ohio has a noxious habit of purging voters from the rolls based on inactivity if they do not return a notice of removal or vote within four years of its mailing, despite the National Voter Registration Act’s prohibition on removing voters for not voting. Tens of thousands of Ohio voters, a disproportionate number of whom are people of color and low-income voters, have already been functionally stripped of their right to vote.

The infamous cake artist case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which implicates several major civil rights issues, will be argued sometime between late November and early December. The aforementioned cake artist wants the right to discriminate based on religious belief, claiming that being forced to bake for same-sex weddings violates his First Amendment rights. Colorado, however, decided that people have the right not to be discriminated against on the basis of their sexual orientation or gender identity back in 2008. The case could drastically expand the grounds for discriminating on the basis of religion, a long-term conservative quest. It could also result in LGBT people gaining the same constitutional protections against discrimination afforded on the basis of sex—or even race.

The court’s history, and recent shakeup, makes this case particularly hard to predict: When Justice Antonin Scalia held Justice Neil Gorsuch’s seat, the court refused to hear an appeal from a New Mexico Supreme Court decision that found a photographer—arguably engaged in a significantly more expressive profession—violated state law by refusing to photograph a same-sex ceremony. Then there’s how long it took the court to hear the appeal: Even after Justice Gorsuch’s April 7 confirmation, the court delayed deciding whether to take the cake artist case an additional nine times—bringing the total number of delays to a record 18.

In early 2018, the justices will hear Janus v. AFSCME, a case that could overturn a 40-year-old Supreme Court precedent protecting the rights of workers to organize. If decided wrongly, the court could fundamentally erode the rights of working people by letting workers gain the benefits of union membership without paying any dues to the union. A bad ruling would require public sector unions to represent workers who refuse to pay union dues. Unions have been critically important in building and protecting the American middle class. Strong unions help lift wages for union and nonunion members alike and have been instrumental in helping people achieve the American dream. The case is a key part of a broader conservative strategy to inflict a “mortal blow” on organized labor.

The term’s biggest surprises, of course, may not come in the form of a vote, opinion, or dissent—or even a retirement. The way we talk about the Supreme Court—and the court itself—is changing. Conservatives’ unprecedented violations of democratic norms to take over the judiciary, including threats to eliminate the long-standing blue slip process they used to block President Barack Obama’s nominees and split the 9th Circuit Court of Appeals, invite broader questions about reform throughout that branch. Academics revisiting proposals for reform proposals have already reached into the structure of the Supreme Court itself, examining the possibility of term limit for justices in order to restore balance to the bench.

In sum, what’s truly unprecedented in this term isn’t a legal issue before the court but rather the issues surrounding Republicans’ undemocratic takeover of the courts. Conservatives are now the judicial activists and progressives the fair-minded constitutionalists. The biggest open questions are how far conservatives will go—and whether the public will begin to push back.

Rebecca Buckwalter-Poza is a Fellow at the Center for American Progress. Jake Faleschini is the Director of the Federal Courts Program at the Center. Michele Jawando is the vice president for Legal Progress at the Center.

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Rebecca Buckwalter-Poza


Jake Faleschini

Director, Federal Courts Program

Michele L. Jawando

Vice President